Pepe in the Court of Law: An Interview with Kimberley Motley

Pepe the Frog now has an attorney, and one whose resumé is exceedingly impressive. Kimberley Motley is a high-profile lawyer — a TED Talker, a documentary subject, a victorious defense litigator in Afghanistan — who now represents Matt Furie in his fight to reclaim his signature amphibian character, the same one that has been the foundation of one of the strangest, and most frightening, artistic sagas in American history.

We talked about why she initiated a dialog with the cartoonist and what she hopes to get out of fighting for him and his most infamous creation.

RJ CASEY: How did you first get involved with Matt Furie and this Pepe controversy?

KIMBERLEY MOTLEY: We connected because I am enthusiastic about comics. I was reading about Matt killing off Pepe the Frog in a news article. I reached out to him and asked him, “Why? Why are you doing this?”
What was his response?

He was very frustrated with the turn that Pepe has taken, particularly with the alt-right. He just felt that at that point in time, killing Pepe off was the right thing to do. It wasn't something that he was overly excited about, but he did not know how to stop Pepe’s image being used negatively by the alt-right.

So you were aware of Pepe before you got involved?

Oh yes, of course. [Laughter]

Do you remember when you first encountered the character or first heard about it?

I’ve seen the meme for a couple years now. I remember really starting to pay attention to Pepe when Hillary Clinton was talking about him. Then one of the Trumps tweeted about him. There was also a picture of a green-faced Donald Trump, and I automatically knew that was Pepe. That image is so ingrained in me, and I think in a lot of people, that when I saw that picture, I instantly knew that it was a reference to Pepe.

I’ve been worried about Matt throughout this whole fiasco. What has his mindset been like since you came onboard?

He’s been very positive. We’ve been pleased about what’s happening with the Kickstarter. Frankly, we weren’t sure where that was going to go. Matt and his brother Jason did a very good job of launching that. That gave us confirmation that there are a lot of people out there that care and see Pepe as an agent for good, and peace, and love, which was the original intention of Pepe in the first place.

Do you have any idea of what kind of toll this ordeal has taken on Matt and his family?

It clearly couldn’t have been easy. Matt’s a really good guy. He’s very humble and a great artist. It’s been hard for him to see his creation being used in a negative way, especially since it was created to be a funny, friendly frog. I think it has been shocking and disappointing to Matt. For me personally, I always see what happened to Pepe over the last year and a half representative of what’s happening in America. This is a wonderful country with a lot of possibilities and opportunities, but unfortunately, from my perspective, we’ve seen a lot of ugliness lately. I’ve seen a lot of negativity that is taking our country in a direction that I don’t like. To a certain extent, that is what has happened to Pepe. The alt-right has hijacked him and has tried to take this symbol as their own.

I think a lot of that has to do with how the internet is set up and in a way still feels like the Wild West. How are you going to take that on? Is this unprecedented?

It is, in a way. It’s difficult. Matt, Jason, and I believe in freedom of speech and want to make sure people can still celebrate Pepe. You can’t really control how Pepe has been used on the internet in the past, especially since he’s been turned into this meme. Dealing with the internet is difficult because there are so many users all around the world. Pepe has taken on a life of his own. However, what should not happen is people profiting off Pepe and the intellectual property of Matt Furie. That’s a big concern. I couldn’t make a tuna fish sandwich at home and stick a McDonald’s logo on it and sell it to people. The McDonald’s corporation would come after me. This is Matt’s creation and people don’t have a right to take his intellectual property and then themselves profit off of it without his permission.

I had a co-worker today show me a book by this alt-right nut named Baked Alaska. There’s a Pepe meme on the cover of it.

Oh, really? [Laughter] Do you know when that book comes out? I’d like to see that.

I can send it to you. A lot of the Pepes I see online, and on this book cover, are rip-offs or crude likenesses of Matt’s drawings.

You’re right.

Kimberley Motley at the new Design Café in Wazir in Kabul 2013

Is that going to be tough to follow through on because they are sort of mock-Pepes? It’s not Matt’s drawing.

Whatever legal decisions we make going forward aren’t going to be against people that use Pepe in a non-profit way. We don’t want to eliminate Pepe from the internet — that isn’t the goal here. We are going after the people who are making T-shirts, mugs, or books and are profiting off goods generally.
Has the term “meme law” been thrown around at all?

[Laughs] I have never heard that term, but it’s cool. That is kind of what we’re getting into. But I do want to be very clear; this isn’t just about any legal challenges Matt chooses to take or to not take. This certainly isn’t about Matt trying to get in the way of anyone’s freedom of speech. The challenges we’re taking on are about permissions. We don’t intend to shut down a meme. That’s not the intention.
What are those major challenges you expect to face?

Since I started and the Kickstarter has begun, we’ve all been trolled. That’s to be expected, but it’s annoying. The challenge would be to pick out the particular people that we are looking at to go after legally. And what would our specific arguments be against those particular people versus all the others who have used Pepe. You can’t sue everybody, especially when it comes to Pepe. He’s just too well known and global. That will be the major challenge — finding out who are the right people to target and who has harmed Matt the most in their use of Pepe.

Are there any legal cases in the past that you can reference here or this a new frontier?

It’s definitely not a totally new frontier. There is a lot of case law involving trademarks, patents, and copyrights that is out there. Many of them are very friendly towards artists. There are cases where artists have had their work appropriated by another group. There are US Federal copyright patent laws that are out there to protect artists in this way. You often hear the cases of Disney suing people for their use of Disney characters. And they are very successful. Shepard Fairey has been involved in high-profile copyright infringement cases. There are cases and very strong laws that protect intellectual property.

Other than your general interest in comics, what makes you the right person to take this on?

Number one: I am very interested. Two: I have a global legal practice and lot of my work involves litigation. I do a lot of commercial litigation and criminal litigation. A lot of it I’ve done outside the US, but I certainly still have ties in America. I think I have a reputation for fighting for causes that people don’t necessarily fight for. I do a lot of work in Afghanistan fighting for women’s rights. I've done work in cases on gun rights. I’ve done cases involving global corporations who want to protect their patents and their trademarks. I have a history of fighting in cases that are very nuanced and bringing out the larger issues.

Do you think it will be difficult to get the average person to care about a cartoon frog?

This isn’t necessarily about using American society as judge, juror, and executioner on this case. But we definitely want all Americans to understand what our position is. It’s important for people to understand how Pepe represents a microcosm of what’s happening in America. It’s a pretty accurate representation. Just like America can be a “brand” as a country that welcomes in immigrants — America is this great experiment where virtually everyone, unless you are Native American, is from another country and yet we’ve been very successful. Now it’s sort of switching into a more divisive environment. Now people are trying to “rebrand” America as something else. I see that as synonymous of what’s happening with Pepe. For that reason, I do think that saving Pepe is something that Americans should care about. This is currently happening to America and this is currently happening to Pepe. Pepe should matter to people. We have a right to protect our brand as Americans just like Matt has a right to protect his brand and Pepe.

I often see takes online where people say that Matt should put this in the loss column and just walk away with his tail between his legs. How would you respond to that?

I would definitely disagree. It’s very brave of Matt to try to resurrect his own property. In terms of art and artists, a lot of people don’t realize this because a tangible good isn’t being created. Many people don’t count a drawing or an image as a tangible good. But it’s really no different than me going into someone’s house and walking out the door with their television set. That’s what’s happening with Pepe. They are taking away Matt’s property and have no right to do that. Matt’s fight is honorable. As Americans, we should be brave and fight for our rights. He should not have his image appropriated and used for profit without his permission. He has a right to say that I don’t think my image should be used that way. I don’t think it's fair for people to say he should give up the fight. It’s good that he’s doing this.

You started an online petition to the Anti-Defamation League. Why do you think that is necessary?

The purpose of the online petition is to encourage the Anti-Defamation League to remove Pepe from their database. I certainly believe in what the Anti-Defamation League does as an organization. However, I feel as though adding Pepe to their database normalized and gave credibility to the people who use Pepe as a hate symbol. That I strongly disagree with. Pepe is being used as a hate symbol by a very small movement, which actually doesn’t have that many people. Pepe is known more globally as a happy frog image, or a sad frog image, whatever. For them to put Pepe on their database gave more power to the alt-right. I want to encourage people to sign the petition to take Pepe off the database as a hate symbol because the vast majority of people who use Pepe, or have seen Pepe in the past, have not aligned it with a hate symbol. The alt-right is trying to make him a new-age swastika and it’s not right. By the Anti-Defamation League putting Pepe in the database, I think that encourages them even more.
Have you had any communication with the ADL?

I have talked to them. We talked even before we put the petition out. We are having a conversation.

What is the best-case scenario for you and Matt here?

The Kickstarter campaign has been successful, so we’re off to a good start. I want to see Pepe rehabilitated as a new symbol for love, peace, and acceptance. I want Pepe to be like a heart symbol as opposed to this negative image. I want people to look at Pepe and associate him with positivity. Those that are profiting off Pepe in a negative way are going to be stopped. That’s what the best-case scenario looks like right now.
I’m glad you're on Matt’s side.

It’s the right side to be on.

Full Disclosure: RJ Casey works for Fantagraphics Books, which published Matt Furie’s Boy’s Club in 2016.